MARIAN BANK v. INTERNATIONAL HARVESTER CREDIT CORP

This action was tried before this court, sitting with a jury, which resulted in verdicts and judgments entered in favor of plaintiff The Marian Bank ("Bank") for $25,643.59, in favor of plaintiff William Booker ("Booker") for $64,356.41, and in favor of plaintiff B.B.M. Trucking Co., Inc. ("BBM") for $3,000.00. The jury also returned a verdict against defendant International Harvester Credit Corporation ("IHCC") on its counterclaims. Presently before the court are the defendant's motions for judgment n.o.v., for new trial, and to be excused from ordering transcripts. For the reasons which follow, we excuse the defendant from ordering the transcript, and we deny the motions of the defendant for judgment notwithstanding the verdict and for a new trial.

In June of 1981, PCC and CCLC defaulted on their obligations under the Retail Installment Contracts. The plaintiff Booker, desiring to purchase the trucks, made an agreement with Pelullo to purchase the stock of PCC, and Booker then approached the plaintiff Bank for financing.

A meeting was held on June 29, 1981 attended by Stanley and Ehinger, general partners of the plaintiff Bank, Buckshaw, a representative of the defendant IHCC, Collins, a representative of the defendant IHC, and Pelullo. It was revealed that the plaintiff Booker desired to purchase the four trucks with the plaintiff Bank providing the financing of the equity in the trucks, and with the defendant IHCC agreeing to continue the existing financing on the trucks. Buckshaw represented that after the amount past due of $25,643.59 was paid, there would be a balance due of $212,728.90.

On July 9, 1981 an agreement among all the parties was finally reached and a letter confirming the agreement was sent. The plaintiff Bank agreed to extend a loan to the plaintiff Booker to purchase the trucks and insured that $25,643.59 would be paid to the defendant IHCC to bring all four Retail Installment Contracts current. A second lien would be imposed on the trucks by the plaintiff Bank, which would follow the first lien of the defendant IHCC. The plaintiff Booker would make all future payments on the trucks at $1,000 per month, per truck. The letter of confirmation was dated July 9, 1981 and was sent by Stanley, a general partner of the plaintiff Bank, to the defendant IHCC with an endorsed check in the amount of $25,643.59 and with a request that IHCC sign the letter and return it to the plaintiff Bank. The letter also confirmed the representation that the amount due and owing on the trucks was $212,728.90. The defendant IHCC signed and returned the letter, and proceeded to deposit the check of the plaintiff Bank. At this time also, PCC was extended a $40,000.00 loan by the plaintiff Bank which was requested by the plaintiff Booker and which was personally guaranteed by him.

Subsequent to this agreement, the plaintiff Booker incorporated BBM and then took possession of the trucks and made repairs. It was at this time that the plaintiff Booker first learned of the tax liens. He contacted Buckshaw who told the plaintiff Booker to assume the tax obligations. When Booker indicated that he would be unable to do so, Buckshaw proposed a "friendly repossession." According to this arrangement, the defendant IHCC was to take possession of the trucks as if repossessing them, hold them for fourteen days, and then return them and transfer titles to the plaintiffs Booker and BBM, free of the tax liens. Also according to this arrangement, the only remaining required payments to be made were the $1,000 per month, per truck until the sum of $212,728.90 was paid. IHCC thereafter repossessed the trucks. At the end of the fourteen-day period arrangement, the defendant IHCC refused to return the trucks to the plaintiffs Booker and BBM under the above conditions. The plaintiffs Bank and BBM instituted this action.

During the trial, both the defendants IHC and IHCC moved for a directed verdict upon the close of the evidence. The motion of IHC was granted while the motion of IHCC was denied. Therefore, the only remaining defendant is IHCC. IHCC now moves for judgment n.o.v. and for a new trial following the jury's verdicts in favor of the plaintiffs, the Bank, Booker and BBM, and against the defendant IHCC, and against defendant IHCC on its counterclaims against PCC.

MOTION FOR JUDGMENT N.O.V.

Rule 50(b) of the Federal Rules of Civil Procedure provides that whenever a motion for directed verdict made at the close of all evidence is denied, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Fed.Proc.L. Ed. § 62:692.

The jury having found for the plaintiffs in the case sub judice, this court must take all the evidence and all the inferences reasonably arising therefrom in the light most favorable to the plaintiffs.

The defendant's arguments are principally directed toward the claim that the evidence introduced at trial was insufficient to support the claims of both plaintiffs, the Bank and Booker. This court will consider each of the defendant's arguments in light of the plaintiffs' claims.

Initially, the defendant argues that there was insufficient evidence to support the claim that the plaintiff Bank suffered a loss which could be translated into recoverable damages. The defendant contends that the plaintiff Bank acted as a mere agent for the plaintiff Booker. Viewing the evidence and inferences reasonably arising in the light most favorable to the plaintiffs, this court finds that such contentions have no merit. The plaintiffs' Amended Complaint and the evidence introduced at trial indicate that the plaintiff Bank negotiated with and entered into an agreement with the defendant both in its own right and as an agent for the plaintiff Booker. The plaintiff Bank also performed its obligations in connection with the agreement, such as sending its check for $25,643.59, which defendant accepted and deposited in its account. This contract was breached. As a consequence, the plaintiff Bank suffered a loss and is entitled to recover.

The defendant also discusses the loans made by the plaintiff Bank to support its argument that the plaintiff Bank did not suffer a loss. The defendant contends that the loan made by the plaintiff Bank on July 14, 1981 to PCC, was repaid out of the proceeds of a loan made by the plaintiff Bank in October of 1981 to ...

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